In 1980, an international treaty was designed to return children who had been abducted by a parent who moved to another country. Back then, the people drafting the treaty thought the typical abductor would be a noncustodial father skipping town with the kids, leaving mom with little recourse to try to get her children back. So what happens, three decades later, when research indicates that 68% of the abducting parents in cases under this treaty are mothers and that many of them are fleeing abusive spouses?
The Convention on the Civil Aspects of International Child Abduction, dubbed the Hague Convention after the place where it was finalized, has been adopted by 82 countries, which are expected to help return abducted children to their habitual residence within six weeks of a parent filing a petition. But Jeffrey Edleson and Taryn Lindhorst, lead researchers on a new study of Hague Convention cases, argue that the treaty is often used against women seeking safety for themselves and for their children from violent husbands. "We always thought that child abduction is a bad thing," says Edleson, a professor of social work at the University of Minnesota. "But in some cases, mothers are taking children to protect them from greater harm."
Building on a previous study by Nigel Lowe, a law professor at Britain's Cardiff University, that found more than two-thirds of alleged abductors in Hague cases filed worldwide were women, Edleson and Lindhorst looked at the more than 300 Hague Convention decisions that were published in U.S. courts between 1993 and 2008. Their new study, which was funded by the National Institute of Justice and will be published next year by Northeastern University Press, analyzed the 47 published U.S. Hague Convention court decisions involving allegations of domestic violence and included interviews with 22 battered mothers who responded to Hague petitions in U.S. courts. The majority of those women had their children ordered to return to another country.
The result in several cases was that the children and their mothers, who generally accompanied them faced renewed physical abuse upon their return, researchers found in interviews with the mothers. "Judges want to trust our treaty partners will provide protection for our children and mothers," says Merle Weiner, a law professor at the University of Oregon and one of the nation's leading scholars on the Hague Convention. "But sometimes that protection is not real. Sometimes the batterer is so dangerous that only geographical distance can make a difference."
To raise awareness of the issue, Edleson has organized a Dec. 10 event, timed to coincide with Human Rights Day, in Minneapolis, where actresses will read battered mothers' testimonies from Hague Convention cases. The readings will be interspersed with conversations between lawyers, legal scholars and social scientists on domestic violence and the Convention, which contains provisions that allow judges to refrain from returning a child if doing so puts him or her at "grave risk" of "physical or psychological harm." But too often, scholars and lawyers say, judges are not sufficiently steeped in the law to know that they have discretion to accept this as an applicable defense. Additionally, since the treaty's goal is to have children returned to their habitual residence within six weeks of a parent filing a Hague Convention petition, lawyers may not have enough time to assemble evidence that domestic violence occurred in the other country.
"I don't think the treaty is wrong," Edleson says. "It was put in place for the right reasons." But he and other experts say it's time to update how the Hague Convention is being implemented, to make it easier for battered mothers to argue that their kids should not be returned to a country where their violent husbands live. The U.S. could also act independently and add a similar provision to the International Child Abduction Remedies Act that Congress passed in 1988. "We've only recently realized that the great majority of taking parents are mothers," Edleson says. "It's important we make these adjustments so that the Convention fits this new reality."